An administrative law judge (ALJ) for the Equal Rights Division of the Department
of Workforce Development issued a decision in this matter. A timely petition for
review was filed.

The commission has considered the petition and the positions of the parties, and it
has reviewed the evidence submitted to the ALJ. Based on its review, the
commission agrees with the decision of the ALJ, and it adopts the findings and
conclusions in that decision as its own, except that it makes the following
modifications:

1. The last sentence in paragraph 4 of the FINDINGS OF FACT is deleted and
the following sentence is substituted therefor:

"He did not issue an oral or written warning or any other
discipline to Rodriguez regarding this incident."

2. The first three sentences in paragraph 6 of the FINDINGS OF FACT are deleted
and the following sentence is substituted therefor:

"On August 30, 2000, Rodriguez was driving his truck at the
landfill and the driveshaft broke."

3. In the fourth line of paragraph 16 of the FINDINGS OF FACT, the name
"Bunge" is deleted and the name "Goodrich" is substituted therefor.

4. Paragraph 2 of the ORDER is deleted and the following paragraph is
substituted therefor:

"That the Respondent shall reimburse the Complainant for his
reasonable attorney's fees and costs incurred in this matter. The
amount of those attorney's fees to date is $11,235.00, and the
amount of the costs to date are $891.75. The Respondent shall
issue a check payable jointly to the Complainant and his
attorney, Victor E. Plantinga, in the amount of $12,126.75 and
deliver the check to the office of Mr. Plantinga."

5. Paragraph 5 of the ORDER is deleted and the following paragraph is
substituted therefor:

That within 30 days of the expiration of time within which an
appeal may be taken herein, the Respondent shall submit a
compliance report detailing the specific action it has taken to
comply with the commission's decision. The compliance report
shall be directed to the attention of Kendra DePrey, Labor and
Industry Review Commission, P.O. Box 8126, Madison,
Wisconsin 53708. Wis. Stats. § § 111.395,
103.005(11) and (12) provide that every day during which an
employer fails to observe and comply with any order of the
commission shall constitute a separate and distinct violation of
the order and that, for each such violation, the employer shall
forfeit not less than $10 nor more than $100 for each offense.

DECISION

The decision of the administrative law judge (copy attached), as modified, is
affirmed.

Dated and mailed January 28, 2003
rodrihe . rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case raises questions about the employer's policy with respect to terminating
employees for "truck abuse" and whether the complainant, Hector Rodriguez, was
treated differently under this policy.

Hector Rodriguez is Puerto Rican. Rodriguez worked as a truck driver hauling
waste for the respondent. Rodriguez was employed by the respondent from
June 6, 2000, until October 25, 2000, when he was discharged, allegedly for truck
abuse.

The ALJ concluded the truck abuse reason was a pretext for the complainant's
discharge and that the real reason was the complainant's race. The commission
finds the ALJ's decision to be supported by the record and therefore affirms his
decision.

In his memorandum opinion, the ALJ stated that the complainant established a
prima facie case, having proved that he was qualified for the job, that he was
terminated, and that others not in the protected category were not terminated for
similar offenses. Further, the ALJ stated that the respondent offered a
nondiscriminatory reason for the complainant's termination, but that the
complainant had met his burden of proving that the truck abuse reason was a
pretext and that the real reason was the complainant's race.

The ALJ stated that Rodriguez was treated differently than both Thomas Goodrich
and Terry Bunge, who had driving records that were comparable to the
complainant's. The ALJ noted that Goodrich and Bunge were never disciplined in
any manner because of their damage to the vehicles, and that, incredibly, the
respondent seemed to not even be aware of the damage that they did to the
vehicles. Referencing Bunge, the ALJ noted that while he was a longer-term
employee, the record also establishes that he damaged trucks by "truck abuse"
three times in about a two-week period.

The ALJ then had this to say about the credibility of the respondent's
witnesses:

"The Respondent's witnesses were not especially credible, and raised
very serious support for the conclusion that race was the determining
factor in this termination decision. Burie did not recall much, but
was a willing witness ready to testify to anything that he thought
would help the Respondent's case. Yet he could not really remember
who made the decision to discharge the Complainant, ending up
testifying that both James and Patrick McConnell participated in that
decision. James had already denied that he played any role in the
termination decision. Patrick had absolutely no recall, but seemed
pretty sure that he wasn't involved in the termination decision either.
If the Respondent is to be believed, it appears that no one decided to
terminate the Complainant!

Scott Burie testified that he was responsible for issuing discipline, in
coordination with the terminal manager. He testified that he reviewed
termination decisions, which were then made in coordination with the
terminal manager and Patrick McConnell. Burie made the notes
regarding the June incident at the Omro facility. He was unable to
credibly testify specifically that he or James McConnell ever spoke to
the Complainant about that incident. He also was unable to testify
that he had collected all these notes of alleged abuse before the
discrimination complaint was filed. It appears more likely that these
notes were all collected in response to the discrimination claim, and
not as part of a review of work performance leading to a discharge
decision.

Burie's testimony was not credible. It was full of generalizations and
speculation about what he would normally do, what would normally
be considered, and what the termination process should be. He
lacked specific recall about what actually took place in the
termination of the Complainant. His testimony was often not
supported by the other witnesses or by the remainder of the record.
He did not recall who actually was involved in the termination
decision, what documents were actually part of the personnel file at
the time of termination, or what was discussed at the time of the
termination. Most incredible was Burie's sudden recollection, after
leading questions on direct examination, that Goodrich was going to
be terminated for truck abuse too but that the Respondent chose to
rely on the insubordination claim so that it could deny the
unemployment compensation.

Doug McConnell instructed the Complainant on the proper use of the
power divider and what to do if the truck became stuck. He did not
discipline or warn the Complainant that he was engaging in truck
abuse or that his employment was in danger. Doug McConnell does
not make hiring or termination decisions. He was unable to testify
that he had, in fact, communicated his opinion about truck abuse to
any supervisor or that his note on the repair order was communicated
to any supervisor before the complaint was filed in this case. There
was no evidence that this repair order referring to truck abuse was
reviewed prior to the discharge decision.

James McConnell was not a credible witness. His testimony was
incomplete and contradicted the testimony of other witnesses. His
demeanor supported the inference that he was not being truthful in
his testimony. He testified that the company takes truck abuse
seriously and terminates employees for truck abuse. The record
shows that truck abuse was apparently only taken seriously in regard
to Hector Rodriguez. James McConnell's testimony was also
interesting in that he denied any role in the termination decision,
contrary to the testimony of his father and Burie. He insisted that Pat
McConnell made the termination decision and all that he did was
communicate that decision to the Complainant. Yet Pat McConnell
has no recollection of even being involved in the decision and Burie
couldn't recall who was involved in the decision.

According to Patrick McConnell, he is not directly responsible for
discipline and he only makes termination decisions `if asked.' He
testified that Burie was supposed to follow a step approach to
discipline, which included a discussion, followed by a written warning
or suspension, followed by a suspension, followed by a review for
termination. Of course, there was no evidence that such a procedure
was followed in the termination of either Rodriguez or Goodrich.
Patrick McConnell was otherwise unable to recall any details
regarding the termination process or the reasons for the termination
of the Complainant. His testimony was that James McConnell did not
have the authority to terminate an employee. Rather it would have to
be a joint decision between James McConnell and Scott Burie. He
added that the Complainant did come to him about the termination,
that Burie told the Complainant that the reason was truck abuse but
did not give any specific information.

James testified that `he guessed' that they would terminate someone
after a couple of instances of truck abuse but that he would give the
person time off (a suspension) before terminating for that reason. The
Complainant was never disciplined or suspended. James testified
that he `guessed' that driving too fast in October was truck abuse. He
testified that he talked to the Complainant about spinning his tires on
two occasions, but never talked to him about the broken leaf spring.
When the truck hit the DePere transfer station, James McConnell
testified that he believed he had talked to the Complainant but really
could not recall and he did not document that incident. He certainly
did not discipline the Complainant for that conduct. Finally, he
testified that any damage to a truck and even just spinning the tires
or driving too fast is truck abuse and that he knew of no employee
who had abused a truck and had not been fired."

DISCUSSION

The respondent argues that the ALJ made serious factual errors that led him to an
incorrect conclusion in this case. The respondent argues that probably the most
significant factual error made by the ALJ was his conclusion that other employees
who were not in the protected category had not been terminated by the respondent
for similar offenses. As evidence, the respondent cites Exhibit 6, a document Scott
Burie prepared showing all employees terminated by the respondent from 1997 to
2001 (except Rodriguez), along with the reasons for their termination, who
terminated them and their race. The respondent identifies three white employees
on this exhibit whose sole reason for termination is shown as excessive equipment
damage. They are Richard Engel, terminated on November 28, 1997; Jack
Ostrander, terminated on November 6, 2000; and Dave Harvala, terminated on
March 16, 2001.

It is hardly surprising that the ALJ gave no weight to Exhibit 6, however. The
exhibit provides no information regarding the nature of the truck abuse or how
many instances of truck abuse occurred. Furthermore, Scott Burie provided no
testimony with respect to the employees identified on this exhibit. Thus, there was
no information provided from which a comparison could be made of the similarity
of the offenses for which the white employees listed on Exhibit 6 were
terminated.

The respondent also takes exception to the ALJ's finding that Bunge's record of
truck damage was comparable to the record of damage by Rodriguez. The
respondent argues that unlike Rodriguez, Bunge had not been the subject of
complaints from landfill operators about driving at excessive speed or spinning
tires. The respondent argues that Bunge's truck damage incidents were "isolated
incidents after almost one year of uneventful driving."

First of all, it is questionable whether the respondent actually considered driving
too fast to be truck abuse. James McConnell stated when questioned by his
counsel that he "guessed" that driving too fast was truck abuse, and had to be
asked again if he knew or was guessing before stating that it was. As for spinning
tires, contrary to Bunge's testimony that he has never been one for spinning tires,
Bunge undoubtedly was one to spin his tires. In about a two-week period Bunge
broke the power divider on his truck, then broke an axle on his replacement truck
and then broke the axle on his original truck after the power divider had been
repaired. Douglas McConnell testified that there were two ways to break a power
divider and an axle-spinning tires and failure to lock the power divider in gear.
Moreover, Douglas McConnell testified that under normal circumstances axles
would never break. For some reason, however, the respondent seemed not to even
be aware of the damage that Bunge had done to his vehicles. Additionally, there
was testimony by James McConnell that an employee would not be fired for
breaking a leaf spring. Thus, when comparing the damage caused by Rodriguez to
that caused by Bunge, you have Rodriguez who was responsible for striking two
waste transfer stations and breaking one drive shaft, and Bunge breaking a power
divider and two axles. Finally, while Bunge was a longer term employee, that does
not explain the respondent's alleged lack of awareness of his truck abuse, given
the alleged seriousness that the respondent placed on truck damage, the fact that
Bunge was involved in three incidents of truck damage within a very short period
of time and the fact that the likely cause of those incidents of truck damage was
due to what the respondent considers to be truck abuse.

Additionally, the respondent argues that the record is at odds with the ALJ's
conclusion that the notes the respondent produced at the hearing (i.e., Exhibits 3,
4 and 5) to document instances of truck abuse by Rodriguez were more likely
collected in response to the discrimination claim, and not as part of a review of
work performance leading to a discharge decision. The respondent argues that
Scott Burie testified that he was unsure as to when only Exhibit 4 (Douglas
McConnell's repair order for Rodriguez's broken driveshaft) appeared in
Rodriguez's personnel file; that Exhibit 5 (Burie's note re 6/14/00 Omro incident)
was derived from Rodriguez's personnel file and that Exhibit 3 (James McConnell's
10/18 and 23/00 write-ups for Rodriguez) was maintained in his file.

It is evident why the ALJ would question Scott Burie's testimony that he had
Exhibits 3, 4 and 5 available to him at the time that the decision was made to
terminate Rodriguez. First, after having testified on direct examination that he
had all of these exhibits at the time of the termination, on cross-examination Burie
admitted that he did not know when Exhibit 4 was placed in Rodriguez's file. In
fact, he testified that this document "may have been (placed in his file after he was
terminated), I doubt it, but it may have been." (T. 117) Additionally, Burie's
testimony regarding Exhibit 5, his note dated June 14, 2000, when Rodriguez
struck the doorframe of the Omro station, raises serious questions about Burie's
credibility. The transcript reads as follows, beginning with Burie's reading of what
the note states:

A On 6/14 of 2000 struck door frame of Omro, first incident
combined with prior problems at Omro, no disciplinary
action,
informed to slow down in the future and not unroll tarp fully at
Omro and I initialed my initials.

Q So you informed Hector Rodriguez of this?

A Either I would have informed him or his dispatcher would have
been informed to make sure that he was aware.

Q Okay. So the first incident occurred with Hector Rodriguez on
what date?

A That would have been 6/14, so June 14th of 2000.

Q And that involved damage to the Omro facility, correct?

A Damage to his unit, the truck unit, the trailer.

Q And he was warned at that time?

A At that time, correct.

Burie claims that Rodriguez was warned about damaging his truck trailer in the
Omro incident, yet he admits not knowing whether he or a dispatcher had spoken
to Rodriguez about the incident. James McConnell, on the other hand, testified
that he told Rodriguez "just to watch the lids when he pulled out of the building
because it'll catch on the doors." James McConnell's testimony indicates that
what had happened to Rodriguez had happened with other drivers. Furthermore,
Burie's note states that Rodriguez was informed not to "unroll tarp fully" at Omro.
However, Rodriguez was not driving a truck where the driver would manually
unroll the tarp. The cover system on his truck unit operated by way of two
hydraulic arms that ran the length of the truck bed and had to remain open when
backing in to get loaded and when pulling out.

Wisconsin courts, in the absence of the WFEA's establishment of a specific
procedure by which a complainant must prove a claim of employment
discrimination, have adopted the basic allocation of burdens and order of
presentation of proof utilized to prove a claim of employment discrimination
brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172-
173, N.W.2d 372 (Ct. App. 1985). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the
complaining party to establish a
prima facie case, which then raises a
presumption of discrimination. To rebut the presumption, the
defendant need only articulate a legitimate, nondiscriminatory reason
for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be
given the opportunity to prove that the proffered reason is merely a
pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805;
see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857,
861 (1980).

Id. at 172.

To establish a prima facie case of a discriminatory discharge, the complainant
must show that: (1) he was a member of the protected age group; (2) he was
discharged; (3) he was qualified for the job, and (4) either he was replaced by
someone not within the protected class or others not in the protected class were
treated more favorably. Puetz, 126 Wis. 2d at 173 (internal citations omitted).

The respondent does not dispute that Rodriguez established the first three
elements of a prima facie case. The respondent argues that the ALJ erred,
however, with respect to the fourth element because his conclusion that others
who were not in the protected category were not terminated for similar offenses is
flatly contradicted by Exhibit 6. The respondent argues that Exhibit 6 clearly
shows that other white employees have been terminated solely for excessive
equipment damage, both before and after Rodriguez's termination. The
respondent's argument fails. As noted above, evidence was lacking from which a
comparison could be made of Rodriguez's truck damage and the truck damage for
which the white employees listed on Exhibit 6 had been terminated. Exhibit 6 did
not provide any information regarding either the nature of the truck abuse by the
white employees or how many instances of truck abuse had occurred. Nor did
Scott Burie, who is said to have prepared this document from information
contained in the employment records of the respondent.

Next, citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the respondent
argues that in that case the Supreme Court highlighted that the McDonnell
Douglas presumption shifted the burden of production to the defendant, but not
the burden of persuasion, relative to the key issue of whether or not discrimination
has occurred. The respondent states that there the Court held that the employer
satisfies its burden of production when it produces evidence, "whether ultimately
persuasive or not," of nondiscriminatory reasons for the employment decision.
The respondent argues that it is clear from the ALJ's decision, however, that he
based his ultimate decision largely on what he judged to be the lack of credibility
of the respondent's witnesses at the hearing. The respondent argues that in doing
so, the ALJ effected a legally impermissible shift of the complainant's burden, as
articulated in St. Mary's Honor Center, to establish that discrimination did
occur.

This argument also fails. It is clear from the ALJ's decision that he understood
that the McDonnell Douglas presumption created by a prima facie case of
discrimination merely shifted to the respondent the burden of producing evidence
of a legitimate, nondiscriminatory reason for its termination of Rodriguez, and that
the ultimate burden of persuading the trier of fact that the respondent
intentionally discriminated against Rodriguez remained at all times with
Rodriguez. This is evident, for example, in the ALJ's memorandum opinion where
he states, in relevant part:

The Respondent offered a non-discriminatory reason for the
termination. For the reasons outlined above, the Administrative Law
Judge has found that the Complainant has met his burden of proving
that the truck abuse reason was a pretext and that the real reason
was the Complainant's race."

Mem. Op., p 6.

Contrary to the argument by the respondent, the ALJ's decision indicates that his
ultimate decision that there was race discrimination is largely based on proof that
the respondent's explanation of truck abuse for Rodriguez's termination was
unworthy of credence. The ALJ concluded that this explanation was unworthy of
credence because other white employees, particularly Terry Bunge, had a record of
truck damage comparable to Rodriguez's record of truck damage, yet they were not
terminated for truck damage. Further, the ALJ noted that the respondent, in fact,
did not even seem to be aware of all the damage that Bunge had caused. Given
that Bunge had broken a power divider and the axles on two trucks in about two
weeks time, however, it is unreasonable to believe that the respondent did not
know about this since in each instance it was necessary for the respondent to
make arrangements for someone else to finish his work for the day due to the
incapacitation of his truck. (T. 134-135) Proof that the defendant's explanation is
unworthy of credence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may be quite persuasive. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000), citing St. Mary's
Honor Center, 509 U.S. at 517. See also, Gordon v. United Airlines, 246 F.3d 878,
891 (7th Cir. 2002)(Employer's proffered reason for plaintiff's discharge further
placed in question because no manager claimed responsibility for making the
employment decision.)

The respondent's argument that the ALJ found the respondent failed to meet its
burden of production on the basis of the lack of credibility of its witnesses, thereby
improperly shifting the burden of proving discrimination from the complainant to
the respondent, cannot be sustained. The ALJ recognized that the respondent had
satisfied its burden by merely articulating the legitimate, nondiscriminatory reason
of truck abuse as reason for Rodriguez's termination. The credibility of the
respondent's witnesses was simply an additional assessment that the ALJ
considered in determining whether or not the complainant, Rodriguez, had met his
burden of proving that the truck abuse reason articulated for his termination was
a pretext and that the real reason was his race. The ALJ has sufficiently set forth
his assessment of the credibility of the respondent's witnesses as quoted above.
As the Court stated in St. Mary's Honor Center:

"The factfinder's disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the
prima facie case, suffice to
show intentional discrimination.. upon such rejection, 'no additional
proof of discrimination is required.' "

509 U.S at 511.

The respondent states that in St. Mary's Honor Center, the Court also held that the
fact finder's rejection of an employer's legitimate, nondiscriminatory reason for its
action does not compel judgment for the complainant. The respondent
acknowledges, however, that more recently in Reeves, the Court held that, in
certain cases, it may be permissible for the trier of fact to infer the ultimate fact of
discrimination, when coupled with sufficient evidence to find that the employer's
asserted justification is false. The respondent then points out, however, that the
Court continued, stating:

"This is not to say that such a showing by the plaintiff will always be
adequate to sustain a jury's finding of liability. Certainly there will be
instances where, although the plaintiff has established a prima facie
case and set forth sufficient evidence to reject the defendant's
explanation, no rational fact finder could conclude that the action was
discriminatory."

The respondent states that one of the examples the Court suggested as a possible
such circumstance is that in which the claimant has created only a weak issue of
fact as to whether the employer's reason was untrue, and there is abundant and
uncontroverted independent evidence that no discrimination had occurred. This is
not such a case. The ALJ found the respondent's truck abuse reason to be
unworthy because other white employees, particularly Terry Bunge, had damage
records comparable to that of Rodriguez, but were not terminated for truck abuse.
Further, the ALJ found serious problems with the credibility of the respondent's
witnesses. Moreover, there is not abundant and uncontroverted independent
evidence that no discrimination has occurred in this record.

Finally, the respondent argues that there is no discussion by the ALJ as to
whether the respondent honestly believed its reason for discharging Rodriguez.
The respondent argues that if it did honestly believe its reasons for discharging
Rodriguez, Rodriguez is clearly unable to meet his burden of proving pretext. The
respondent argues that this holds true even if the reason for discharge was "foolish
or trivial or even baseless," so long as the respondent honestly believed it. (Citing,
Gordon v. United Airlines, 246 F.3d at 889, and Salinas v. Crivello Properties (LIRC,
06/05/92)(An employer's reason for discharge may be good, bad, mistaken or for
no reason at all, so long as it is not based on considerations of race.)

This argument by the respondent likewise fails. In Gordon, the court stated that
when determining whether an employer's belief is honest "we need not abandon
good reason and common sense in assessing an employer's actions." 246 F.3d at
889. Further, as pointed out by the court:

" '[I]f the employee offers specific evidence from which the finder of
fact may reasonably infer that the proffered reasons do not represent
the truth, the case then turns on the credibility of the witnesses.'
Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir. 1995). In such
circumstances, the employee creates `a factual issue as to whether
the employer's explanation is credible or merely a pretext for
discrimination.' Dey [v. Colt Constr. & Dev. Co., 28 F.3d 1446], 28
F.3d at 1461. `When the sincerity of an employer's asserted reasons
for discharging an employee is cast into doubt, a fact finder may
reasonably infer that unlawful discrimination was the true
motivation.' " Andreani [v. First Colonial Bankshares Corp., 154 F.3d
389 (7th Cir. 1998)], 154 F.3d at 395 (citations omitted)."

Id.

Rodriguez offered specific evidence regarding the respondent's failure to terminate
(or even consider for any discipline or write-up) Terry Bunge for truck abuse
despite his several instances of truck abuse, thus permitting the ALJ to reasonably
infer that the respondent's proffered reasons did not represent the truth.
Furthermore, this fact combined with the ALJ's assessment that the respondent's
witnesses were not credible could allow the ALJ to reasonably infer that unlawful
race discrimination was the true motivation for the respondent's termination of
Rodriguez's employment.

ATTORNEY'S FEES AND COSTS

The ALJ awarded the complainant attorney's fees of $6,750 and $812.50 for costs
to the date of his decision. The attorney's fees awarded were for 45 hours of
service at a rate of $150 per hour. The complainant had requested an award for
63.1 hours of service (with a portion of those hours at a rate of $150 per hour and
another portion at the rate of $170 per hour). In addition, the complainant had
requested attorney's fees of $3,181.96 for the purported assistance provided by an
attorney from another law firm.

The complainant's fee petition submitted to the ALJ failed to include an affidavit
regarding counsel's experience and billing rate and what constituted a reasonable
billing rate for fair employment cases in the south- eastern Wisconsin area.
However, because the ALJ was aware from personal experience of the
complainant's counsel's work on other equal rights cases in the past and had
observed his presentation in the instant case, the ALJ was able to judge that a rate
of $150 per hour was a reasonable billing rate for the complainant's counsel.

As for the hours of service expended, first the ALJ eliminated the request for 2.4
hours billed for research and considering federal claims for the complainant, and
he reduced the hours of service requested by 5.2 to reflect excessive calls to
co-counsel regarding the status of the case. Second, the ALJ further reduced the
number of hours requested by an additional 10.5 hours. In making this further
reduction the ALJ gave consideration to the complainant's counsel's need to travel
to attend depositions, to prepare for the hearing and to attend the hearing itself,
but he also concluded that an award for 45 hours of service was reasonable for
this case, considering the fact that this was a relatively simple factual case without
complex evidence and extended testimony, and that the entire hearing took less
than four hours.

The ALJ declined to award any attorney's fees for the purported services of the
second attorney, however, for several reasons. Among them were that the second
attorney had never filed a notice of retainer in this case, no hourly rate was
identified in the billing he submitted, the ALJ was unfamiliar with this attorney,
and the second attorney's itemization of services was incomplete and did not
adequately identify what work had been performed.

REQUEST FOR ADDITIONAL FEES AND COSTS IN CONNECTION WITH PETITION
FOR REVIEW

The complainant's fee petition requests additional compensation for costs of
$88.75 and 33.9 hours of service at the rate of $170 per hour. (33.9 hours x $170
per hour equals $5,763. However, the complainant's billing statement shows an
amount of $5,719, a difference of $44. It appears that this $44 difference results
from two itemized entries for .2 hours that should each actually amount to $34,
but are shown as amounting to only $12. $170 x .2 hours equals $34.)

Included with the complainant's fee petition before the commission is an affidavit
stating counsel's experience and that $170 per hour is the hourly rate for all of his
private clients. Counsel's affidavit states that he is a 1986 law school graduate,
that he has since served as a prosecutor, then went into private practice and is
now a partner at Rose & deJong. The affidavit states that he has had experience
in ERD hearings, proceedings before LIRC and at the circuit court level upon
appeal, and that he has also handled federal court claims under the ADA, Title VII
and 1981 claims. Further, counsel states that he was counsel in the leading
Wisconsin religious discrimination case entitled Marquardt v. Wal-Mart, and that
because of his expertise, he receives referrals on approximately a bi-weekly basis
from large firms that only represent management, including Davis & Kuelthau, the
firm representing the respondent in this case. Counsel's affidavit also states that
he is a skilled litigator, having argued cases in state and federal court, including
the Seventh Circuit Court of Appeals, and that he has also conducted trials in the
states of Illinois, Indiana and Michigan. The affidavit also lists the various types of
civil and criminal cases that he has tried.

The respondent acknowledges that the complainant's counsel's affidavit identifies
his hourly rate and provides extensive detail about his experience but argues that
it still fails to address what a reasonable billing rate would be for handling a fair
employment case in southeastern Wisconsin. The respondent states that the ALJ,
who faced a similar deficiency, determined that an hourly rate of $150 per hour
was reasonable, and that the commission should adopt the rate selected by the
ALJ absent information concerning what a reasonable rate would be in
southeastern Wisconsin for similar services provided by lawyers of comparable
skill and experience.

With respect to hours of service, the respondent points out that the current fee
application includes entries for services dated February 18 and 22, 2002, totaling
4 hours, which are exact duplications of entries previously submitted to the ALJ
and must be disallowed as duplicative.

Further, the respondent points out that the complainant has asked for $9.50 in
costs for fax and copying charges on February 18, 2002, which were also part of
his previous submission and therefore should be denied as repetitious.

Additionally, the respondent objects to 3.4 hours of time submitted for the
assistance of an outside attorney. The respondent has identified dates in
February, March, April and May of 2002 for such services. The respondent asserts
that the complainant's counsel's affidavit submitted in support of its current
application for additional fees extensively details his experience in labor and
employment matters and that the complainant has made no demonstration of
need for the assistance of an outside attorney in addition to his counsel in the
preparation of his response to the respondent's appeal.

The respondent thus requests that the complainant's additional fee request be
awarded at the rate of $150 per hour, that the fee request be reduced by 7.4 hours
($1,110) and that the request for costs be reduced by $9.50.

Given the absence of information from the complainant concerning what a
reasonable rate would be in southeastern Wisconsin for similar services provided
by lawyers with skills and experience comparable to his lawyer, and because it was
the ALJ's judgment that $150 per hour was a reasonable rate for the
complainant's counsel, the commission is inclined to keep the rate for the
additional fee request at $150 per hour.

The commission agrees with the respondent that the complainant's entrees for
services dated February 18 and 22, 2002, totaling 4 hours, must be disallowed as
duplicative.

In reply to the respondent's arguments regarding a reduction of hours for
assistance of counsel, the complainant states that in February 2002, he made
calls to the respondent's previous counsel at Sorenson law offices regarding the
status of any appeal and attempts to resolve the case. The complainant's billing
statement confirms that there were two such calls. One was made on February 22
for .3 hours regarding "Respondent's Plan to Appeal," and the other on February
25 for .2 hours regarding "Potential Settlement without Appeal." The commission
agrees with the complainant that the fee requests for the .3 hours and .2 hours
spent on the telephone with the respondent's previous counsel on February 22 and
25, respectively, should not be deducted. These itemized requests were not
previously made before the ALJ and should be compensable as efforts to resolve
the case.

Additionally, the complainant states that several of his calls to attorneys in
connection with the respondent's appeal were made to various management labor
attorneys concerning issues raised in the respondent's brief. The complainant
argues that these calls enabled him to streamline his research, thus benefiting the
respondent, and that the alternative would be to conduct this research himself,
thus increasing his request for legal fees.

The commission agrees with the complainant and therefore has not reduced the
fee requested for these services.

To summarize, the commission has reduced the requested hours for service
expended by 4, thus granting an additional award of 29.9 hours for services
expended at the rate of $150 per hour. This comes to $4,485 in additional fees.
Also, the commission has deducted costs of $9.50 as duplicitous. This results in
an additional award of $79.25 for costs.

The total award for attorney's fees is $11,235.00. The total award for costs is
$891.75.